In the Atlantic, Garrett Epps pens a fine column asking whether Justice Scalia still matters. Garrett makes a number of points about Scalia’s declining influence–especially after the ascendancy of the Chief’s powers in NFIB v. Sebelius. One parting though warrants some more thought:
Today I wonder whether Scalia is becoming a solid vote — sort of a Clarence Thomas who talks. “Originalism” as a judicial philosophy is hitting its sell-by date. It was born in the 1980s to restrain liberal judges; now that the bench has moved to the right, restraint seems somehow less important. Roberts and Alito, at any rate, seem impatient with originalism and eager to move into new areas like libertarian economic thought. They are glad to get Scalia’s vote, but less interested in his routines from old-time radio.
Libertarian economic thought? Roberts and Alito? If only. Though I think Garrett is right to say that originalism may be sliding, in large point because moder judicial conservative thought does not gravitate around judicial restraint as it once did, a point I made here and here.